from the round-two dept

We have a quick update today on the defamation lawsuit that Shiva Ayyadurai filed against us earlier this year. Last month, Judge Dennis Saylor dismissed the lawsuit, pointing out that everything we said concerning Ayyadurai's claim to have invented email (specifically us presenting lots and lots of evidence of email predating Shiva's own work) was clearly protected speech under the First Amendment. Unfortunately, despite us being a California corporation, Judge Saylor did not grant our separate motion to strike under California's anti-SLAPP law -- which would have required Ayyadurai to pay our legal fees.

Two weeks ago, Ayyadurai notified the court that he was appealing the dismissal, which we will defend against in court, and we are confident that we will prevail once again. On top of that, today, we've notified the court that we are cross-appealing the decision to reject our motions to strike under California's anti-SLAPP law. We have argued in court that this is an obvious SLAPP lawsuit -- an attempt by the plaintiff, a self-proclaimed public figure, to try to silence detailed, evidence-based criticism of his claims. We believe that the court improperly applied choice of law principles on which state's anti-SLAPP law should apply, and we look forward to making our case before the 1st Circuit appeals court on why California's anti-SLAPP law is the proper law to apply. We'll provide more updates as the appeals progress.

from the the-first-amendment-means-something dept

As you likely know, for most of the past nine months, we've been dealing with a defamation lawsuit from Shiva Ayyadurai, who claims to have invented email. This is a claim that we have disputed at great length and in great detail, showing how email existed long before Ayyadurai wrote his program. We pointed to the well documented public history of email, and how basically all of the components that Ayyadurai now claims credit for preceded his own work. We discussed how his arguments were, at best, misleading, such as arguing that the copyright on his program proved that he was the "inventor of email" -- since patents and copyrights are very different, and just because Microsoft has a copyright on "Windows" it does not mean it "invented" the concept of a windowed graphical user interface (because it did not). As I have said, a case like this is extremely draining -- especially on an emotional level -- and can create massive chilling effects on free speech.

A few hours ago, the judge ruled and we prevailed. The case has been dismissed and the judge rejected Ayyadurai's request to file an amended complaint. We are certainly pleased with the decision and his analysis, which notes over and over again that everything that we stated was clearly protected speech, and the defamation (and other claims) had no merit. This is, clearly, a big win for the First Amendment and free speech -- especially the right to call out and criticize a public figure such as Shiva Ayyadurai, who is now running for the US Senate in Massachusetts. We're further happy to see the judge affirm that CDA Section 230 protects us from being sued over comments made on the blog, which cannot be attributed to us under the law. We talk a lot about the importance of CDA 230, in part because it protects sites like our own from these kinds of lawsuits. This is just one more reason we're so concerned about the latest attempt in Congress to undermine CDA 230. While those supporting the bill may claim that it only targets sites like Backpage, such changes to CDA 230 could have a much bigger impact on smaller sites like our own.

We are disappointed, however, that the judge denied our separate motion to strike under California's anti-SLAPP law. For years, we've discussed the importance of strong anti-SLAPP laws that protect individuals and sites from going through costly legal battles. Good anti-SLAPP laws do two things: they stop lawsuits early and they make those who bring SLAPP suits -- that is, lawsuits clearly designed to silence protected speech -- pay the legal fees. The question in this case was whether or not California's anti-SLAPP law should apply to a case brought in Massachusetts. While other courts have said that the state of the speaker should determine which anti-SLAPP laws are applied (even in other states' courts), it was an issue that had not yet been ruled upon in the First Circuit where this case was heard. While we're happy with the overall dismissal and the strong language used to support our free speech rights, we're nevertheless disappointed that the judge chose not to apply California's anti-SLAPP law here.

However, that just reinforces the argument we've been making for years: we need stronger anti-SLAPP laws in many states (including Massachusetts) and, even more importantly, we need a strong federal anti-SLAPP law to protect against frivolous lawsuits designed to silence protected speech. The results of this case have only strengthened our resolve to do everything possible to continue to fight hard for protecting freedom of expression and to push for stronger anti-SLAPP laws that make free speech possible, and not burdensome and expensive.

You have not heard the last from us on the issue of the First Amendment, free speech and anti-SLAPP laws -- or how some try to use the court system to silence and bully critics. Step one of this is our new Free Speech edition, which we announced just a few weeks ago, where we are focusing more of our reporting efforts on issues related to free speech and anti-SLAPP. We intend to do a lot more as well. For years, we've talked about these issues from the position of an observer, and now we can talk about them from the perspective of someone who has gone through this process as well.

Of course, if you have to face something like this, it helps to have great lawyers--and we're immensely grateful for the incredible hard-work of Rob Bertsche, Jeff Pyle and Thomas Sutcliffe along with the rest of the team at their firm, Prince Lobel Tye LLP.

Finally, I can't even begin to thank everyone who has supported us over the past nine months -- whether by kind words (you don't know how much that helped!) or through our survival fund at ISupportJournalism.com or by becoming a Techdirt Insider. We just passed Techdirt's 20th anniversary and while it's one thing to think that people like and support you, it's another thing altogether to see how people come out to support you when it matters most. And we were overwhelmed by the support we received over the past nine months, and the kind words and help that many, many people offered. It was beyond heartening, and, once again, it reinforces our resolve to continue to speak up for free speech and to do what we can to protect others' ability to speak out as well.

from the no-fun-at-all dept

Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be.

If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event.

Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read.

from the and-on-it-goes dept

As you hopefully know by now, we're currently facing a major lawsuit, brought against us in Boston, that we consider to be an attack on our First Amendment right to report on matters of public concern. If you support journalism and support the First Amendment, please consider donating to our survival fund, which is helping us to continue reporting on a variety of important matters, including new battles over net neutrality and encryption, not to mention many other battles over freedom of expression.

As we've noted, repeatedly, this case has been a huge distraction and has made it difficult for us to do the kind of work we've done for almost twenty years. If you wish to catch up, you can read about our initial filings in the case, including our motion to dismiss and our motion to strike under California's anti-SLAPP law. We also made additional filings concerning Section 230 problems with some of the claims against us. In addition, in early April we filed a reply to the opposition to our filings.

On April 20th, there was a hearing in federal court on our motions. If you're interested, a reporter from Law360, Brian Amaral, was in court and covered the hearing (possible paywall):

from the fighting-to-report dept

As we mentioned a few months ago, we are currently in a First Amendment fight for our very survival against Shiva Ayyadurai, who has announced his desire to shut us down for explaining, in detail, why we feel he did not invent email (given the long history of the development of email that preceded Ayyadurai's particular software application). Ayyadurai has retained the lawyer Charles Harder in this lawsuit, and Harder has been successful in getting another media property, much larger than Techdirt, to go bankrupt and be sold off in the face of a number of similar lawsuits. Last month, we asked for the case to be dismissed for a variety of reasons, including under California's anti-SLAPP law. Ayyadurai has opposed these motions. Yesterday, we filed our reply to Ayyadurai's opposition.

We recommend reading our reply carefully, along with all of the other filings in the case, and familiarizing yourself with all of the details in order to make up your own mind. If you believe that free speech and a free press matter in holding powerful people accountable -- or if you are worried about claims by public officials that it's time to "open up" or change our libel laws to go after a press that may report less than flattering things about them -- then please consider contributing to our Survival Fund at ISupportJournalism.com. As I have noted before, this lawsuit has been a massive distraction. It has already forced us to delay multiple projects that we were working on, and to postpone other projects that we were scheduled to begin. It has, similarly, limited our time and resources to continue reporting on a variety of topics that we would normally cover. In short, no matter what the outcome of the actual case, the lawsuit alone has already been tremendously costly for us in terms of how we operate.

At a time like this when truly independent reporting is so important, especially on a variety of matters concerning free speech online, net neutrality, copyright, patents, innovation and more, we hope you'll consider supporting our continued ability to report on these topics.

from the go-ahead-and-read dept

A quick update in the lawsuit filed against us. Today we filed additional motions for Leigh Beadon, part of the team here, who was also sued. We've filed a motion, on Leigh's behalf, to have the lawsuit thrown out on anti-SLAPP grounds, because this is a strategic lawsuit designed to chill our exercise of First Amendment rights. At the time of our initial filings in the case, Leigh had not yet been served. That happened a few days later, and now we've also filed the motions to dismiss for Leigh as well, and a related memorandum detailing the reasons why he should be dismissed. Please read the filings. Also, just to have them all in one place, we've posted our original filings below as well.

As we noted before, this lawsuit is a huge distraction for us, and we appreciate everyone who has stepped up already to help keep us going and to keep publishing through this ordeal. Please check out the site ISupportJournalism.com to let us know you support our reporting on a variety of important issues. Or, check out some of our t-shirts, hoodies and other gear, as we've been refreshing some old favorites and some new designs as well.

Unfortunately, the fight itself is incredibly distracting and burdensome. It has taken up a significant amount of my time (and the time of others who work here) over the last month and delayed multiple projects that we were working on, and even forced us to pass on writing about many stories we would have liked to cover. Even though we are confident in winning the legal fight, it has already taken a massive toll on us and our ability to function and report. We have now set up a Techdirt Survival Fund at ISupportJournalism.com, which will allow us to continue our reporting on issues related to free speech and the growing threats to free speech online, while continuing to fight this legal battle. We've put together an all-star steering committee to help us oversee how the funds will be spent, including representatives from both the Freedom of the Press Foundation and EFF.

Many of you have already supported us in various ways -- by becoming Techdirt Insiders, supporting us on Patreon or by buying t-shirts. We are so grateful for all initial support we've received, but for us to survive, we unfortunately need to ask for more help. Please consider supporting us via this new fund and spreading the word as well.

In this era, especially, strong independent voices in journalism are necessary. Allowing lawsuits to stifle freedom of expression online, silencing voices and creating chilling effects, is a huge threat to how a responsible society functions. Please support Techdirt and support journalism.

from the chilling-effects dept

Let's say right upfront: if you are unaware, Shiva Ayyadurai is currently suing Techdirt for our posts concerning Ayyaduria's claims to have invented email. Ayyadurai's lawyer in this matter is Charles Harder, the lawyer who filed multiple lawsuits against Gawker, and is credited by many with forcing that company into bankruptcy and fire sale.

Now Harder, on behalf of Ayyadurai, has sent a demand letter to try to have social media comments posted in response to the lawsuit against us taken down. We are writing about this -- despite the lawsuit against us -- because we believe it is important and we do not intend to have our own speech chilled. This is also why we believe it is so important to have a federal anti-SLAPP law in place, because the chance to chill speech with threats or actual litigation is not a hypothetical problem. It is very, very real.

Harder's letter is to Diaspora, and it demands that certain posts by Roy Schestowitz be removed (which appears to have happened). Schestowitz is the guy behind the Techrights blog, which frequently covers issues related to things like free v. proprietary software and software patents. Harder's letter to Diaspora claims that Schestowitz's posts are defamatory, violate Diaspora's terms of service, and "constitute harassment and intentional infliction of emotional distress."

Harder's letter makes the questionable claim that Diaspora itself is liable for Schestowitz's statements. There is tremendous caselaw on Section 230 of the CDA holding that a website cannot be held liable for speech made by users, so it's odd that Harder would argue otherwise, stating that the posts "qualify under the law to establish liability against you."

One of the key reasons Section 230 of the CDA exists is to protect the freedom of expression of users, so that websites aren't pressured via legal threats to take down speech over fear of liability. That's why it grants full immunity. It is surprising that an attorney as established as Harder would overlook this. Elsewhere in the letter, he references Massachusetts law as applying, so it's not as though he's suggesting that some other jurisdiction outside the US applies. So, since Section 230 clearly applies, why would Charles Harder tell Diaspora that it is liable for these statements?

Separately, Harder's letter concludes with the following statement:

This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.

We have seen similar statements on legal letters in the past and they have generally been considered meaningless, at best. On the question of confidentiality/authorization for publication, that's not how it works. The recipient of such a letter has no obligation to not disseminate it or to ask for authorization without any prior agreement along those lines. You can't magically declare something confidential and ban anyone from sharing it. Furthermore, this is especially true when dealing with legal threat letters. While many lawyers put such language into these letters to try to scare recipients (and avoid a Streisand Effect over the attempt to silence speech), they serve no purpose other than intimidation.

Separately, claims of copyright in takedown or cease & desist letters, while they do show up occasionally, are also generally considered to be overstatements of the law. First off, there are questions raised about whether or not general cease & desist threat letters have enough creativity to get any kind of copyright, but, more importantly, even if there were copyright on such a letter it would be a clear and obvious fair use case to be able to share them and distribute them publicly, as part of an effort to discuss how one has been threatened with questionable legal arguments.

Either way, we believe that this fits a pattern of using legal threats and litigation to silence criticism of public figures. In an era when speaking truth to power is so important, we believe such actions need to be given attention, and need to be called out. We also think they demonstrate why we need much stronger anti-SLAPP laws, at both the state and federal level to protect people's right to speak out about public issues. If you agree, please call your elected representatives and ask them to support strong anti-SLAPP protections, like those found in the SPEAK FREE Act of 2015.

from the as-they-should-be dept

As we noted last week, Shiva Ayyadurai, a guy who didn't invent email but has built his entire reputation on the false claim that he did, was able to cash in on the settlement agreed to by Nick Denton to end all of the Charles Harder-related lawsuits against Gawker. Again, Silicon Valley billionaire Peter Thiel, because of a personal grudge against Gawker, set up lawyer Charles Harder on a retainer, basically agreeing to help fund any lawsuit against Gawker that might help destroy the company. Harder filed a few, but the big one was the one filed by Hulk Hogan. Hogan won that (after losing the first few attempts and then going jurisdiction shopping for a court that would side with him). Almost everyone with any knowledge of the law agreed it was likely the verdict would lose on appeal (the appeals court had already ruled earlier on this case in favor of Gawker). Either way, Denton finally settled the case rather than push on, because of the cost of defending it and because Thiel had promised to keep funding the case as far as it would go. And, of course, it wasn't just that one case.

The Ayyadurai case was the most ridiculous of all. Ayyadurai did not invent email by any stretch of the imagination, but likes to go around falsely claiming he did, and smearing those who actually did the work. Thomas Haigh, a historian who keeps the most canonical explanation of Ayyadurai's misleading claims (including how they continue to morph and change and evolve over time) has the full story, but Gawker, among many others (including us) pointed out that he did not invent email. That led Ayyadurai and Charles Harder to sue Gawker -- presumably because (1) the Gawker/Harder/Thiel thing and (2) because Gawker used inflammatory language. The "settlement" meant that Ayyadurai got $750,000, though we're guessing a decent chunk of that likely went to Harder. Ayyadurai, somewhat ridiculous, put out a press release laughably claiming that "this settlement is a victory for truth." It's not. It's the opposite. It's a victory for the opposite of truth and shows how abusing the legal system can get you paid out -- especially when there's a billionaire willing to help fund the questionable lawsuits.

Anyway, it appears that those who were actually involved in the creation of email are pretty damn upset by this turn of events and are speaking out. If you go back to the early RFC on the creation of email, like 524, 561, 680 and 724 and 733, you see that all of the key concepts in email were being publicly discussed and implemented prior to Ayyadurai writing his email program in 1978.

One of the authors of those last two RFCs (724 and 733) is David Crocker, and he's not pleased with Ayyadurai trying to rewrite him out of the history of email -- and especially not with Ayyadurai getting a ton of cash for doing so. For what it's worth, Crocker and Ayyadurai have tangled before -- when Ayyadurai took some comments from Crocker so out of context to be borderline fraudulent (Ayyadurai took two separate sentences, that were separated by pages in a report Crocker wrote, totally out of context to falsely imply that Crocker said that no one was working on email in 1977). As you can imagine, Crocker is not pleased with the latest windfall for Ayyadurai.

Dave Crocker, who helped write several foundational standards documents about messaging over the internet, told Gizmodo that Ayyadurai’s settlement with Gawker Media represents a victory for a version of the history of email’s development that isn’t supported by evidence. “I grew up being taught that the truth is always a sufficient defense against claims of defamation,” Crocker said upon hearing about the settlement. “Given the extensive documentation about the history of email, I’m sorry to find that that the adage no longer holds true.”

Gizmodo also spoke to one of his co-authors, John Vittal, who first implemented features like "reply" and "forward," and he also found the whole thing baffling.

John Vittal, one of Crocker’s co-authors, seconded his frustration. Vittal is best known in the traditional history of email for being the first person to implement “reply” and “forward” functions. “What’s true is true, and you can’t hide from it, and shouldn’t be able to capitalize on thwarting it,” said Vittal. “To me, it’s a sad day.”

Meanwhile, it appears that throughout all of this, Ayyadurai continues to fool people. I had missed this, but earlier this year, he actually got onto CBS with comedian Mo Rocca on his "Henry Ford's Innovation Nation" in which Rocca falls hook, line and sinker for the bogus claims by Ayyadurai. CBS, of course, happens to also be the home of Walter O'Brien, whose origin story is quite similar to Ayyadurai's. Either way, as long as Ayyadurai continues to falsely hold himself out as the inventor of email, when he is not, people should continue to call out that his claims are simply false.

from the let's-try-this-again dept

So, yesterday we wrote about how Nick Denton had settled all the remaining legal disputes that Gawker had involving three lawsuits filed by lawyer Charles Harder. Most of the attention was paid to the big one -- the settlement with Hulk Hogan. We, however, focused on one of the other cases, since it was one that we followed closely and which showed how Peter Thiel was full of shit in claiming he only bankrolled these anti-Gawker lawsuits to "protect privacy" (and, yes, it's hilarious to see the early backer of both Facebook and Palantir pretending to care about privacy).

The case of Shiva Ayyadurai is the really telling one. For almost five years now, we've been among those explaining why Shiva Ayyadurai's claim that he invented email is complete bullshit. It's not true. Not even remotely. What does appear to be true is that as a fairly bright kid, Ayyadurai was working for a small college in New Jersey and he wrote an electronic messaging program for the school, which he named Email. It was not the first. It was not the last. It was nothing special. Nothing about what Ayyadurrai did was new -- even if he came up with the ideas entirely on his own. Basically every feature that he put in the application was previously discussed on open mailing lists and RFCs about the internet and the messaging systems that would be grafted onto it -- sometimes many years earlier. Ayyadurai tries to rely on the fact that he got a copyright for his program as proof, hoping to confuse people who don't understand the difference between a copyright and a patent. As we've noted in the past: Microsoft has a copyright on the "Windows" operating system. That doesn't mean it invented windows-based graphical user interfaces (because it did not).

Apparently, part of the settlement involved Ayyadurai getting $750,000 along with the agreement to take down the article (it's not entirely clear to me if the article was still up, since Univision had already taken it down). As plenty of people quickly noted on Twitter this was insane. Ayyadurai has spent many years falsely claiming to have invented email and trying to tarnish the obituaries of Ray Tomlinson who was critical in the creation of email (though was humble enough to admit that no one individual actually "invented" email). And now he was getting paid hundreds of thousands of dollars for suing a news site that correctly explained the actual truth: Shiva Ayyadurai did not invent email. I'm sure a good chunk of that money is going to Charles Harder. Who knows if any of it makes its way back to Peter Thiel, who recently explained that he had to help Hulk Hogan because mere "single digit millionaires" couldn't fight back.

Certain of the settlement terms are incorporated within Gawker Media's latest proposed plan of liquidation, filed today, and include a proposed settlement payment to Dr. Ayyadurai and removal of the article at issue. More details will be forthcoming. Dr. Ayyadurai stated: "History will reflect that this settlement is a victory for truth."

No, it's not. It's a victory for bullshit. It's a victory for trying to rewrite history and smear the actual truth. And it was aided by Peter Thiel. I do wonder, though, if Ayyadurai continues to sue publications that properly point out that he is not telling the truth, and targets us, if Thiel will come to our aid. Hell, I'm not even a single-digit millionaire. So, clearly, he's going to help us out, right?

Let's discuss some truth: Ayyadurai did not invent email. Ayyadurai also filed a highly questionable lawsuit over a news story correctly claiming he did not invent email. Ayyadurai's case was only settled because Nick Denton and what remains of Gawker recognized that it was easier to move on with things and end these cases. For Peter Thiel to champion this and for Ayyadurai to claim that his little spat -- which got caught up in the whirlwind of a billionaire's personal grudge -- is a "victory for truth" is complete bullshit. That's the truth.